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Victor Lal was educated in his native Fiji Islands and at the University of Oxford and specializes in conflicts, coups and constitutionalism in multi-ethnic states. He was Reuters, Wingate and Research Fellow at Oxford. Victor Lal was Honorary Research Fellow in the Department of Scandinavian Studies, University College, London, Guest Nobel Fellow at the Norwegian Nobel Institute, and was an associate researcher on 'Project 1905: Swedish-Norwegian Relations for 200 Years', hosted by the University of Oslo. He has held visiting fellowships in Norway, South Africa, Australia and Fiji Islands. Among his publications include Fiji: Coups in Paradise-Race, Politics and Military Intervention and a forthcoming book Towards a World Without War: Andrew Carnegie, Peacemakers and Nobel Peace Prize, 1901-1951. He is completing a book on East African Indians and the Mau Mau Rebellion in Kenya and the biography of Justice Ransley Thacker, the judge who jailed Jomo Kenyatta. In 2008 Victor Lal was co-winner of Fiji’s prestigious Robert Keith-Reid Award for Outstanding Journalism.

Friday, August 11, 2006

FLP colluded in restoring law and order in Fiji

The FLP MP, Mahendra Pal Chaudhry, is once again on the offensive, attacking the President, the Prime Minister, and the Royal Fiji Military Forces, for allegedly violating the rule of law in the country. Most simply put, as reported by the Fiji Sun recently, he has accused the two holders of high political office, and the army, which is the last bulwark of law and order, of allegedly colluding to exclude the FLP from sharing political power. In particular, he now claims that ‘the nation would not be in the present condition were it not for the farce the President enacted in March 2001, when he appointed Ratu Tevita Momedonu as caretaker Prime Minister for 24 hours’.
What is the real truth? The answer lies in the re-examination of the Fiji Court of Appeal judgment of 14 February 2003, and other factual matrix following the seizure of the Chaudhry government by George Speight and his henchmen.
But before we recall the judgment, it is worth asking Chaudhry to explain to the nation why one of his own MPS, Ratu Tevita Momedonu, agreed to abandon his political master, than held prisoner inside the parliamentary complex? We do not know the answer, but Ratu Tevita was one of just a string of Peoples Coalition Government MPS who deserted Chaudhry by the time the country went to the polls from 25 August to 1 September 2001. In fact, many of his FLP colleagues and supporters went on to form the New Labour Party of Fiji, led by Dr Tupeni Baba. We do not know why Ratu Tevita crossed the political fence but Baba, at least, went public to allege that the Indo-Fijian FLP MPS had betrayed him when it came to the post of Prime Minister of Fiji.
We may recall that the Reverend Akuila Yabaki and Others appealed against the decision of Justice Michael Scott, delivered in the High Court on 11 July 2001. Basically, we are interested in two of the four declarations, namely (b) a declaration that the purported dismissal by the President of Hon. Mahendra Pal Chaudhry as the Prime Minister on 14th March, 2001 is inconsistent with the Constitution, and is therefore null and void; and (d) a declaration that the purported appointments of Hon. Senator Laisenia Qarase as Prime Minister and of other persons as Ministers of a caretaker government for Fiji made on or about 15th, 16th and 19th March 2001 are inconsistent with the Constitution, and each such appointment is null and void.
Justice Scott held that the actions of the President were either constitutional or else justified by the doctrine of necessity. Justice Scott had delivered his judgment under conditions of urgency. Writs for the election were planned to be issued the following day and a date for the lection had already been announced. As Justices Barker and Ward pointed out in their own judgment, separate from Justice Davies, Chaudhry’s advice to the acting President, tendered on 1 March 2001, at a time when he was undoubtedly the Prime Minister, was to recall Parliament. Chaudhry envisaged a short session only-one in which the Constitution could be changed to substitute ‘first past the post’ voting system instead of proportional representation as provided in the Constitution. He saw this change as desirable before the election which he and others wanted. Justice Scott, as already noted, had considered that such constitutional breaches as there may have been were excused under the doctrine of necessity. Justices Barker and Ward ruled that for the Court of Appeal ‘to enquire whether he was correct would involve an examination of a detailed factual situation that no longer exists and cannot be resolved’. The two judges, however, ruled that the Fiji Constitution, by the prescriptiveness of s109(1) appear to circumscribe the President’s power of dismissal of a Prime Minister and to have required the House and not the President to determine whether the Prime Minister has lost its confidence.
As I have written elsewhere, although the two judges are right in the strict interpretation of the Constitution, the circumstances as than existed in Fiji, with the FLP MPS quarrelling with each other, and frankly speaking there was no ‘government in waiting’ as ruled earlier by another Court, the departures from the strict requirements of the Constitution as might have occurred were justified by the doctrine of necessity. We hope the politicians will thoroughly re-examine s109(1) which, like the multi-party concept, is fatally flawed in the world of Realpolitik. In fact, as reflected in the President’s than statement, he understood that he was left with no choice but to step outside the strict requirements of the Constitution in his quest to return the nation to peaceful parliamentary rule. Meanwhile, applying the so-called ‘Salem legal principle’ Justices Barker and Ward were not prepared to consider whether Justice Scott was correct or not in applying the doctrine of necessity. They went on to note that ‘because the elections have been held, it is too late to ‘turn the clock’ back. The elections were duly held despite any constitutional irregularities which may have preceded them. The nation has returned to democratic rule’.
The court was asked to look at (a) the dismissal of Chaudhry by the President without a prior vote of no confidence in the House, (b) the appointment of the first caretaker Prime Minister Momedonu, (c) the advice of Momedonu to dissolve Parliament, (d) the resignation of Momedonu after only one day in office and (e) the appointment of a new caretaker Prime Minister Qarase who was not a member of the House of Representatives. Justice Scott did not consider the questions raised by the declarations sought before Justices Barker, Ward and Davies in a vacuum, divorced from what he perceived as the factual matrix in which the impugned decisions had been made.
Consequently, in dismissing the appeal brought by Yabaki and Others, Justices Barker and Ward, ruled that ‘it is too simplistic to consider in isolation from the factual matrix the constitutional questions posed in this moot situation. They cannot properly be answered without a full review of the factual situation in Fiji in March 2001 following the Prasad decision. They cannot properly be decided without full consideration of numerous authorities on the doctrine of necessity. In other words, a decision on this moot case cannot be made without extensive consideration of factual matters’.
The separate judgment of Justice Davies is worth recalling to dismiss outright Chaudhry’s wild allegations about the events of March 2001. As Justice Davies ruled, ‘the person directly affected by the dismissal, Mr Chaudhry, made no such claim in legal proceedings (i.e. his dismissal was unconstitutional). Mr Chaudhry is not a party to the present proceedings and no affidavit from him was filed. Mr Chaudhry appears to have accepted the dismissal. Thereafter, he did not act as seek to act as Prime Minister of Fiji. He participated in the general elections which were held in August-September 2001 and his current position, as illustrated by the decision of this Court in Chaudhry v Qarase (Court of Appeal, 15 February 2002, unreported) is that he and members of his party are entitled, by virtue of s.99(5) of the Constitution, to participate in the Cabinet of Mr Qarase’s Government.’
Justice Davies forcefully reminded us, and inter alia to Chaudhry: the following: ‘Because Mr Chaudhry accepted his dismissal, whether or not he regarded it as unconstitutional, there is no reason to doubt that the dismissal took effect in law as a dismissal. In light of the fact that Mr Chaudhry’s dismissal could not be undone, the principal challenge to the appointments of Ratu Tevita and Mr Qarase as caretaker Prime Ministers’ fall away...The declarations suffer from the further defect that they fail to deal with the point that, were the President’s acts inconsistent with the Constitution, they may have been saved by the doctrine of necessity…Indeed, I doubt that it is in dispute that the actions taken by the President and the holding of the general election in 2001 were effective to restore law and order after the tumultuous events of 2000 and did return the country to Parliamentary democracy at an early time. It is of significance that the President’s actions appear to have received the support of the general populace.’
And as Justice Davies has reminded us, Chaudhry obligingly went to the polls, hoping to return as Prime Minister.
He should, therefore, explain to the nation WHY he contested the election if he felt, as he now claims, that the President, the Prime Minister, and the Army did not observe the rule of the law in March 2001.
He should explain to us why he was negotiating with his arch political rivals, Conservative Alliance Matenitu (CAM) after the general elections, to see if he could form an alternative government to Qarase’s SDL?
Chaudhry and his FLP must stop fooling the nation.
It is time for them to declare whether they want to be part of the running of the country or to stay out.
The political merry ground must come to an end.
As I have consistently maintained, the invocation of the Doctrine of Necessity, was the only powerful weapon in the armoury of the President to prevent Parliament from turning into a human slaughterhouse.
The FLP should be grateful to the President in the nation’s hour of need.